THE TIME & TIDE SERVICE:

FACTSHEET ON ENDURING POWERS OF ATTORNEY

NB. These have been replaced by Lasting Powers of Attorney with effect from 01 October 2007 and this fact sheet will shortly be replaced

A Power of Attorney is a deed by which one person (the Donor) gives another person (the Attorney) the authority to act in his name on his behalf. 

Unlike an ordinary Power of Attorney an Enduring Power of Attorney (EPA) is not revoked by the Donor’s subsequent loss of mental capacity.  However, once the Donor has become incapacitated the Attorney is unable to act under the authority of the EPA  until it has been registered with the Public Trust Office

How does this work?

You may be worried about what will happen in the future if you have an accident or become ill and no longer have the physical and/or mental capacity to look after your own affairs.

For peace of mind, you can give legal authority to another adult to safeguard your interests and to act on your behalf if it becomes necessary.   Setting up an EPA at this stage, as a precaution, means that you can decide who is to manage your affairs should you lose your mental capacity – at relatively little cost.

This authority can be restricted to specific maters, for example to only deal with your money or property.  It can take effect now, or it can be made clear that your attorney will only be able to take over if you should become incapable at any time in the future.  You can appoint more than one attorney to act together or separately. Where two or more are appointed they may act jointly or jointly and severally.  If the appointment is jointly they must act together and the power will cease if either should die or lose mental capacity themselves.  If the appointment is jointly and severally then each can act independently of the other or others.  This may be convenient but may lead to lack of protection for the Donor.

The Attorney has authority to use the Donor’s property to provide for the needs of any persons in the way the Donor might be expected to have done.  He may make gifts out of the Donor’s property provided that they are reasonable amounts and are made on limited occasions to people related or connected with the Donor or to a Charity.

The registration of the EPA with the Public Trust Office effectively revalidates the Enduring Power of Attorney and restores to the Attorney the powers granted by the Enduring Power of Attorney.  Once registered the Donor cannot revoke, extend or restrict the extent of the EPA

Unless restricted to only take effect if you become mentally incapable (or on the happening of any other event you specify) a EPA is “usable” straight away.  It is advisable that your legal advisor keeps the document in case it is needed.

If you lose your mental capacity in the future your attorneys have a legal duty to register the power with the Court of Protection.  You and a number of specified relatives have to be notified of this application and would have an opportunity to object if you (or they) felt the registration inappropriate in the circumstances.  Once registered, your attorneys are subject to the Court of Protection’s jurisdiction – it can spot check attorneys and call for accounts to be delivered.  The Court’s permission would also be needed for actions that are outside the authority of the Power of Attorney, for example making substantial gifts.

What happens if I do not have an EPA?

If you have not already drawn up an EPA and you become incapable, an application has to be made to the Court of Protection for a friend, relative or perhaps a solicitor etc to be your receiver and this process can be time consuming and expensive.  Sadly, as it is the Court who makes this decision, you will have no say in deciding who will look after your affairs.  Even someone to whom you owe money could apply if no family stepped forward to assist.